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United States v. Llewlyn

United States Court of Appeals, Eleventh Circuit

January 24, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
CHARLES LLEWLYN, a.k.a. Charles Llewylin, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:00-cr-06022-DMM-1

          Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, [*] District Judge.

          REEVES, DISTRICT JUDGE:

         Charles Llewlyn appeals the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Because Llewlyn is ineligible for reduction of a sentence he has already completed, we affirm.

         I.

         Llewlyn was charged with controlled substance offenses in the Southern District of Florida in early 2000. He pled guilty in May 2000 to one count of conspiring to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced on September 28, 2000, to 110 months' imprisonment, to be followed by three years of supervised release.

         A few months after Llewlyn began serving his Florida sentence, he was convicted of conspiring to distribute and possessing with the intent to distribute cocaine and cocaine base in the Western District of North Carolina. He was sentenced for that conviction in July 2001 to 360 months' imprisonment, to run consecutively to "any previous state or Federal sentence." Llewlyn's first sentence expired by its terms on or about November 28, 2009, at which time he began serving the 360-month sentence imposed in North Carolina. His anticipated release date is January 27, 2025.[1]

         In 2011 and 2012, Llewlyn filed a trio of motions in the Western District of North Carolina, seeking to reduce his 360-month sentence based on Amendment 750 to the United States Sentencing Guidelines. The district court granted the motions in August 2012 and reduced Llewlyn's sentence to 292 months of imprisonment. The North Carolina sentence was further reduced to 235 months' imprisonment pursuant to Amendment 782 to the Sentencing Guidelines in January 2016.

         Amendment 782 went into effect on November 1, 2014, and lowered the base offense levels for most drug offenses. See United States v. Maiello, 805 F.3d 992, 994 (11th Cir. 2015). Llewlyn filed a pro se motion pursuant to 18 U.S.C. § 3582(c)(2) in the Southern District of Florida in November 2014, seeking a reduction of his 110-month Florida sentence under Amendment 782. However, the district court summarily denied the relief because that sentence had already been completed.

         Shortly thereafter, Llewlyn filed a pro se "traverse, " arguing that he had been in custody without interruption and that his consecutive federal sentences must be viewed in the aggregate for purposes of his motion. No further activity occurred until early 2015, when Llewlyn, still acting pro se, filed a "motion for status" and "motion to reopen judgment to allow time for appeal or in the alternative construe defendant's traverse . . . as a motion to reconsider." The district court viewed the traverse as a motion to reconsider its order denying a sentence reduction and appointed counsel for Llewlyn. The district court denied Llewlyn's motion for reconsideration on February 9, 2016. Llewlyn filed a notice of appeal fourteen days later.

         II.

         The United States contends, as a threshold matter, that the instant appeal is untimely and must be dismissed. Generally, a notice of appeal in a criminal case must be filed within fourteen days after entry of the order or judgment being appealed. Fed. R. App. P. 4(b)(1)(A). Within five days of the district court's denial of Llewlyn's initial motion for a sentence reduction, he filed a "traverse, " which the court construed as a motion to reconsider. A timely-filed motion for reconsideration may toll the time for filing a notice of appeal. See United States v. Dieter, 429 U.S. 6, 8-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976); United States v. Cerceda, 172 F.3d 806, 811 n.3 (11th Cir. 1999) (en banc) (holding that the government's timely motion for reconsideration in a criminal case stopped the time for filing an appeal). But the government maintains that Llewlyn's traverse was actually a motion to correct or reduce a sentence under Rule 35 of the Federal Rules of Criminal Procedure, which does not suspend the deadline for filing a notice of appeal. See Fed. R. Crim. P. 35; Fed. R. App. P. 4(b)(5). We review these issues de novo. United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010).

         Rule 35(a) permits a district court to "correct a sentence that resulted from arithmetical, technical, or other clear error" within fourteen days after sentencing. This rule applies not only to original sentencing proceedings, but also to resentencings under 18 U.S.C. § 3582(c)(2). United States v. Caraballo-Martinez, 866 F.3d 1233, 1241 (11th Cir. 2017) (citing Phillips, 597 F.3d at 1196). However, not all motions under § 3582(c)(2) result in resentencings.

         The classic example of a § 3582(c)(2) ruling on the merits occurs when a district court determines that a defendant is eligible for a sentence reduction because the applicable guidelines range has been lowered; the court has analyzed the § 3553(a) factors; and the defendant is resentenced to a lesser term of imprisonment. See Phillips, 597 F.3d at 1198-99. There is no question in such instances that, because ...


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